UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RAM K. TRIPATHI,

Appellant,

v.

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION,

Agency.

DOCKET NUMBER

DC-0432-14-0612-I-1

DATE: July 28, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Laura A. O’Reilly, Virginia Beach, Virginia, for the appellant.

Charles A. Polen, Esquire, Hampton, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained his removal. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under section 

1201.115 for granting the petition for review. Therefore, we DENY the petition 

for review and AFFIRM the initial decision, which is now the Board’s final 

decision. 5 C.F.R. § 1201.113(b). 

¶2 The agency removed the appellant from the GS-15 position of Research

Physicist based on a charge of unacceptable performance. Initial Appeal File 

(IAF), Tab 4 at 17, 18, Tab 7 at 11. Specifically, the agency charged that the 

appellant’s performance in critical element 2 2 (CE-2) of his performance 

standards, Nuclear Fragmentation Code Comparison (NUCFRG), was 

unacceptable. IAF, Tab 7 at 12. The notice indicated that, during the 

performance improvement plan (PIP) period, the overall expectations were 

lowered since the work to be accomplished during the PIP did not include

comparison of NUCFRG3 to other codes, as was required in the original 

performance standard. Id. Nonetheless, the agency charged that the appellant

failed to achieve minimally successful performance during the PIP period. Id. 

¶3 The appellant appealed the agency’s action, alleging that his performance 

was not unacceptable and that the agency discriminated against him on the basis 

of his age. IAF, Tab 1. Although the appellant initially requested a hearing, 

during proceedings before the administrative judge, he withdrew that request. 

 2 Title 5 C.F.R. § 432.103(b) defines “critical element” as “a work assignment or 

responsibility of such importance that unacceptable performance on the element would 

result in a determination that an employee’s overall performance is unacceptable.”
3

IAF, Tab 10. Based on the written record, the administrative judge affirmed the 

appellant’s removal. IAF, Tab 19, Initial Decision (ID). She found that the 

agency took its action under a performance appraisal system approved by the 

Office of Personnel Management (OPM). ID at 6. She also found that the 

performance standards at issue were valid. ID at 7-8. As to the validity of the 

standards, she noted the appellant’s objections to the inclusion of CE-2 in his 

performance plan because he did not have the skills to perform that activity. ID 

at 7. She found, however, that the fact that the appellant objected to elements of 

his performance plan or considered them difficult did not make them invalid. Id.

¶4 The administrative judge also found that the agency provided the appellant 

with a reasonable opportunity to improve during the PIP period by reducing the 

initially required tasks under CE-2 and providing the appellant the periodic 

assistance of colleagues to help him achieve the goals established by the PIP. 

ID at 8-11. She found that the agency established that, of the five tasks assigned 

during the PIP, the appellant met the minimally successful level for items 

numbered 1, 2, and 3, but failed to meet the minimally successful level respecting 

items numbered 4 (report results in journal article or peer reviewed engineering 

report or similar publication that, among other things, demonstrates how the 

results were obtained) and 5 (provide report results according to a definite

schedule, with final report due on September 2, 2013). IAF, Tab 7 at 179; ID at 

11. She found that the agency proved by substantial evidence that the appellant 

did not successfully complete the PIP, and therefore it met its burden to prove 

that the appellant’s performance of CE-2 of his performance standards was 

unacceptable. ID at 14.

¶5 The administrative judge also found that the appellant did not prove that the 

agency discriminated against him on the basis of age. ID at 14-21. She found 

that the appellant’s evidence that 11 other employees who were given a notice of 

proposed removal for poor performance or misconduct since January 1, 2009, 

were all over the age of 50 does not constitute preponderant evidence that the 
4

agency discriminated by age. ID at 19. She found additionally that, even if the 

appellant’s supervisor suggested that the appellant consider retirement, such a 

statement does not show that the suggestion was due to the appellant’s age. ID at 

19-21.

¶6 In his petition for review, the appellant disagrees with the administrative 

judge’s findings of fact and conclusions of law. He asserts that she erred when 

she found that the performance plan and standards were valid; erred when she 

ruled that the PIP provided the appellant a reasonable opportunity to demonstrate

acceptable performance; erred when she found that the appellant’s performance 

was unacceptable; and erred when she found that there was no age discrimination. 

Petition for Review (PFR) File, Tab 1. 

¶7 To sustain an action for unacceptable performance under chapter 43, the 

agency must demonstrate by substantial evidence, i.e., “the degree of relevant 

evidence that a reasonable person, considering the record as a whole, might 

accept as adequate to support a conclusion, even though other persons might 

disagree,” 5 C.F.R. § 1201.56(a)(1)(i), (c)(1), that: 1) the removal was effected 

under a performance appraisal system approved by OPM; 2) the performance 

standards are valid; 3) the employee was provided with a reasonable opportunity 

to demonstrate acceptable performance; and 4) the employee’s performance was 

unacceptable in at least one critical element. See 5 U.S.C. §§ 4302(b), 4303(a), 

7701(c)(1)(A); Diprizio v. Department of Transportation, 88 M.S.P.R. 73, ¶ 7 

(2001). As noted, the appellant argues that the administrative judge erred in 

finding that the agency demonstrated items 2), 3), and 4).

¶8 As to item 2), the appellant asserts that the standard is invalid because he 

objected to it when it was added to his performance standards, but the agency 

nonetheless included it in his performance standards. It appears that the appellant 

is claiming that the agency erred in not providing him with an opportunity to 

participate in the establishment of the performance standards for his position. 

Under 5 U.S.C. § 4302(a)(2), agencies shall develop performance appraisal 
5

systems which encourage employee participation in establishing performance 

standards. However, 5 U.S.C. § 4302(a)(2) does not create any substantive right 

for each employee to have an actual opportunity to participate in the development 

of performance standards, and there is no statutory or regulatory requirement that 

each employee have an actual opportunity to participate in the development of his 

or her performance standards. We cannot interpret 5 U.S.C. § 4302(a)(2) as 

requiring that the agency offer the appellant an opportunity to participate in the 

development of established standards prior to taking an action for unacceptable 

performance under chapter 43. Therefore, we find that the appellant fails to show 

any error in this regard.

¶9 The appellant also asserts that the agency’s performance appraisal system is 

invalid because it did not define minimally acceptable performance. Performance 

standards are not valid if they do not set forth the minimum level of performance 

that an employee must achieve to avoid removal for unacceptable performance 

under chapter 43. Eibel v. Department of the Navy, 857 F.2d 1439, 1441–44 

(Fed. Cir. 1988).

¶10 Agency performance appraisal systems may include between two and five 

summary rating levels. 5 C.F.R. § 430.208(d). Under any performance appraisal 

system, the lowest rating level is “unacceptable,” which is the only rating that 

will support removal under chapter 43. Jackson–Francis v. Office of Government 

Ethics, 103 M.S.P.R. 183, ¶ 6 (2006); Stenmark v. Department of 

Transportation, 59 M.S.P.R. 462, 468 (1993); see 5 U.S.C. § 4302(b)(6); 5 C.F.R. 

§§ 430.206(b)(8), 430.207(c), 430.208(d). Under certain performance appraisal 

systems, performance of a critical element may fall between “fully successful” 

and “unacceptable.” 5 C.F.R. §§ 430.207(c), 430.208(d); see Jackson–

Francis, 103 M.S.P.R. 183, ¶ 6. If an agency adopts such a performance 

appraisal system, an appellant’s performance could be “not satisfactory” without 

falling to the level that would support removal. 5 C.F.R. §§ 430.207(c)–(d), 

430.208(d); see Jackson–Francis, 103 M.S.P.R. 183, ¶ 6.
6

¶11 Here the agency’s Performance Plan sets forth each critical element but 

does not define the level of performance for each element as part of the Plan, 

defining only the meets expectations and significantly exceeds expectations 

levels. IAF, Tab 7 at 186-90. While the agency’s performance standards were 

not sufficiently precise as to the minimally satisfactory level of performance, the 

PIP identified specific tasks with such detail that, when read in conjunction with 

the performance standards, the appellant was apprised of the tasks he was 

required to perform to meet the minimally successful level of performance. 

Diprizio, 88 M.S.P.R. 73, ¶¶ 10–11. Even if the performance standards lacked 

specificity, the agency provided the appellant with clear guidance of what was 

expected of him during the PIP. IAF, Tab 7 at 177.

¶12 As to item 3), the appellant asserts that the agency failed to give him a 

reasonable opportunity to improve. Before initiating an action for unacceptable 

performance under 5 U.S.C. § 4303, an agency must give the employee a 

reasonable opportunity to demonstrate acceptable performance. Greer v. 

Department of the Army, 79 M.S.P.R. 477, 480 (1998). OPM’s regulations 

governing performance-based actions under 5 U.S.C. § 4303 state, “[a]s part of 

the employee’s opportunity to demonstrate acceptable performance, the agency 

shall offer assistance to the employee in improving unacceptable 

performance.” 5 C.F.R. § 432.104; see Gjersvold v. Department of the 

Treasury, 68 M.S.P.R. 331, 336 (1995). The employee’s right to a reasonable 

opportunity to improve is a substantive right and a necessary prerequisite to all 

chapter 43 actions. Sandland v. General Services Administration, 23 M.S.P.R. 

583, 590 (1984). In determining whether the agency has afforded the appellant a 

reasonable opportunity to demonstrate acceptable performance, relevant factors 

include the nature of the duties and responsibilities of the appellant’s position, the 

performance deficiencies involved, and the amount of time that is sufficient to 

enable the employee to demonstrate acceptable performance. Satlin v. 

Department of Veterans Affairs, 60 M.S.P.R. 218, 225 (1993) (finding that the 
7

administrative judge properly considered the appellant’s length of service and 

experience in concluding that the appellant had received both adequate instruction 

and time in which to demonstrate improvement).

¶13 CE-2 required that the appellant compare NUCFRG3 and Quantum Multiple 

Scattering Fragmentation Model (QMSFRG) to other nuclear physics codes, 

compare to experiment, and report results in a journal article or peer-reviewed 

engineering report or similar publication. IAF, Tab 7 at 178. However, during 

the PIP, the appellant was required to compare only NUCFRG3 to other nuclear 

physics codes. Id. The appellant states that he was “far removed” from the 

NUCFRG3 project, having worked 18 years earlier on NUCFRG2, and he did not 

have the tools that he needed for the project. He states that he had to obtain these 

tools from other researchers to begin the project. Id. at 10. Only the first three of 

the five elements of the appellant’s PIP required that he perform tasks relevant to 

the provision of CE-2 that he “Compare NUCFRG3 to other nuclear physics 

codes.” Id. at 178-79. The agency found that the appellant met the minimally 

satisfactory level regarding these three elements. Id. at 26. Because the 

appellant met the minimally satisfactory level regarding these elements, we find 

that he was given a reasonable opportunity to improve as to them.

¶14 Elements numbered 4 and 5 of the PIP, the elements that the appellant 

failed, required that he report the results of his NUCFRG3 comparison data in a 

journal article or peer-reviewed engineering report or similar publication on a 

specific time schedule. Id. at 179. To achieve the minimally successful level the 

agency provided that the appellant and his supervisor would work closely 

together and discuss the assignments if he needed any clarification. Id. at 178. 

Further, they would meet weekly for an hour to discuss the PIP assignments and 

activities so that the appellant could demonstrate his progress and ask questions. 

Id. The appellant also was provided the periodic assistance of colleagues to help 

him achieve the goals established by the PIP. IAF, Tab 15 at 30. As the 

administrative judge found, the level of individualized attention from his 
8

colleagues and attempts to help the appellant improve his performance constitute 

a sufficient level of individualized attention for his PIP under the law. 5 C.F.R. 

§ 432.104) (as part of the employee’s opportunity to demonstrate acceptable 

performance, the agency shall offer assistance to the employee in improving 

unacceptable performance).

¶15 The appellant also asserts that his performance under the PIP was at least 

minimally satisfactory. A performance standard may consist of more than one 

component, and an employee working under such a standard may be required to 

perform acceptably as to each of these components. Shuman v. Department of the 

Treasury, 23 M.S.P.R. 620, 628 (1984). However, where, as here, an employee is 

removed under 5 U.S.C. § 4303 on the basis of fewer than all the components of a 

performance standard for a critical performance element, the agency must present 

substantial evidence that the employee’s performance warranted an unacceptable 

rating on the performance element as a whole. Id. This evidence should 

demonstrate that the appellant knew or should have known the significance of the 

component at issue, in addition to demonstrating that his deficiencies were

significant enough to justify the action taken. Id. at 629.

¶16 As noted, the appellant achieved the minimally successful level on elements 

numbered 1, 2, and 3 regarding comparing NUCFRG3 to other nuclear physics 

codes. However, the appellant failed to rebut the agency’s evaluation that he did 

not meet the minimally successful level on elements numbered 4 and 5. Agency 

officials assessed that the documents that the appellant provided pursuant to 

element 4 were not well written and were not of the level of quality sufficient for 

publication. They determined that the documents contained little interpretation or 

discussion of results from the data upon which they relied with no real 

quantitative or qualitative conclusions. ID at 25. They also determined that the 

appellant failed to display an understanding of the functionality of the overall 

code or its subroutines. Id. They further determined that the appellant was 

unable to respond to the validity of the results for light ions, particularly as it 
9

related to the subroutine called F2VALIDATION, in spite of the fact that the 

developer of the subroutine was available while he was performing the task to 

clarify its validity. Agency officials expected a researcher of the appellant’s 

experience and grade level to have performed a more rigorous technical 

assessment. Id. 

¶17 Regarding element 5, the agency agreed that the appellant met the 

deliverable dates for the journal article. However, meeting the minimally 

satisfactory level of performance on element 5 required more than meeting 

deliverable dates. Similar to element 4, it required developing a journal article 

with no more than typographical or minor grammatical errors, and specific 

content on each deliverable date. For instance, the first delivery had to include 

what data are available and what the appellant would use for code comparisons as 

well as justification for choosing the selected data and for omitting certain data. 

IAF, Tab 7 at 179. The appellant failed to rebut the agency evidence that, even 

after his colleagues, supervisors, and a subject-matter expert provided feedback, 

the required article that he submitted by the conclusion of the PIP was not clear, 

complete, or thorough, but consisted of unsubstantiated narrative lacking detail 

and technical depth, in other words, it was not of journal quality. Id. at 8. Under 

these circumstances, we agree with the administrative judge that the agency 

presented substantial evidence that the appellant’s performance warranted an 

unacceptable rating on the performance element as a whole. See Shuman, 

23 M.S.P.R. at 628.

¶18 In his petition for appeal, the appellant also challenged the agency’s denial 

of his within-grade increase (WIGI). IAF, Tab 1. The administrative judge did 

not address the WIGI denial in the initial decision. In his petition for review, the 

appellant does not specifically allege that the administrative judge erred in failing 

to address his denial of WIGI claim; however, he does reference that denial twice. 

PFR File, Tab 1 at 14, 16. As explained below, we find that, to the extent that the 

administrative judge erred in failing to adjudicate the appellant’s appeal of his 
10

WIGI denial, the adjudicatory error was harmless. See Panter v. Department of 

the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error 

that is not prejudicial to a party’s substantive rights provides no basis for reversal 

of an initial decision). 

¶19 An employee is entitled to receive a WIGI in his or her rate of basic pay if 

he or she is performing at the “fully successful” level or better at the end of the 

statutory waiting period. 5 U.S.C. § 5335(a) (an employee is entitled to a 

periodic step increase so long as he or she has completed the applicable waiting 

period, has not received an equivalent increase in his or her rate of basic pay 

during the waiting period, and is performing at an acceptable level of 

competence); 5 C.F.R. § 531.404(a) (for purposes of granting or denying a WIGI, 

“acceptable level of competence” means “fully successful” or better). The agency 

must support its decision to withhold a WIGI by substantial evidence. 

¶20 If an agency determines that an employee is not performing at an acceptable 

level of competence and withholds a WIGI, then the employee is entitled to “an 

opportunity for reconsideration . . . within his agency under uniform procedures 

prescribed by the Office of Personnel Management.” 5 U.S.C. § 5335(c). “If the 

determination [to withhold the WIGI] is affirmed on reconsideration, the 

employee is entitled to appeal to the Merit Systems Protection Board.” Id. Thus, 

the Board can exercise jurisdiction over an appeal from the withholding of a 

WIGI as an otherwise appealable action under chapter 53 only if the agency has 

affirmed its initial determination upon reconsideration or has unreasonably 

refused to act on a request for reconsideration. Shaishaa v. Department of the 

Army, 58 M.S.P.R. 450, 453 (1992).

¶21 Here, the agency denied the appellant’s WIGI on the same day that it issued 

the decision to remove him for unacceptable performance. IAF, Tab 4 at 18, 23. 

The agency’s final decision to withhold the appellant’s WIGI indicates that the 

appellant sought reconsideration of the denial, and the deciding official found that 

the performance problems described in the initial WIGI denial were fully 
11

supported. IAF, Tab 4 at 23. Therefore, he issued a final decision that the 

appellant’s WIGI be withheld. Id. Under these circumstances, the Board has 

jurisdiction over the appellant’s WIGI appeal. Shaishaa, 58 M.S.P.R. at 453. 

Because the agency has proven that the appellant’s performance was less than 

fully successful in this removal appeal, we find that it also has established by 

substantial evidence that the appellant was not entitled to receive a WIGI in his 

rate of basic pay, and we affirm the agency’s action.

¶22 Finally, the appellant contends that the administrative judge erred in finding 

that he failed to prove his affirmative defense of age discrimination. In his 

petition for review, he reasserts the arguments that he made below. We agree 

with the administrative judge that the appellant’s evidence is insufficient to meet 

his burden to prove by preponderant evidence that the agency’s action constituted 

discrimination on the basis of age. 

¶23 Under the Age Discrimination in Employment Act (ADEA), found 

at 29 U.S.C. § 633a(a), Federal sector employees can prove a violation merely by 

showing that age was a factor in the contested personnel action, even if it was not 

the “but for” cause. See Savage v. Department of the Army, 122 M.S.P.R. 612, 

¶ 40 (2015). Given the statute’s sweeping language, it is unnecessary to look for 

a particular quantum of influence, such as substantial evidence, but rather for the 

existence of any influence at all. Id. This is so because any amount of 

discrimination tainting a personnel action, even if not substantial, means that the 

action was not free from any discrimination based on age. Wingate v. U.S. Postal 

Service, 118 M.S.P.R. 566, ¶ 7 (2012). 

¶24 An appellant may establish a violation of the ADEA using direct evidence 

or any of three types of circumstantial evidence: convincing mosaic, comparator, 

or pretext. Savage, 122 M.S.P.R. 612, ¶ 42. Direct evidence is evidence that can 

be interpreted as an acknowledgment of discriminatory intent. Id. The first kind 

of circumstantial evidence consists of suspicious timing, ambiguous statements 

oral or written, behavior toward or comments directed at other employees in the 
12

protected group, and other bits and pieces from which an inference of 

discriminatory intent might be drawn. Id. Considered together, such bits and 

pieces may compose a convincing mosaic of discrimination. Id. The second kind 

of circumstantial evidence is comparator evidence, consisting of evidence, 

whether or not rigorously statistical, that employees similarly situated to the 

appellant other than in the characteristic on which an agency is forbidden to base 

a difference in treatment received systematically better treatment. Id. The third 

kind consists of evidence that the agency’s stated reason for its action is 

unworthy of belief, a mere pretext for discrimination. Id. None of the 

aforementioned types of evidence, i.e., direct, convincing mosaic, comparator, or 

pretext, will be needed in every case. Id. Each type of evidence is sufficient by 

itself to support a judgment for the appellant; or they can be used together. Id.

¶25 When an appellant asserts an affirmative defense of discrimination or 

retaliation under the ADEA, the Board first will inquire whether he has shown by 

preponderant evidence that the prohibited consideration was a motivating factor 

in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. Such a 

showing is sufficient to establish that the agency violated the ADEA, thereby 

committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). 

Savage, 122 M.S.P.R. 612, ¶ 51. In making an initial showing, an appellant may 

rely on direct evidence or any of the three types of circumstantial evidence 

described above, either alone or in combination. Id. If the appellant meets that 

burden, the Board then will inquire whether the agency has shown by 

preponderant evidence that the action was not based on the prohibited personnel 

practice, i.e., that it still would have taken the contested action in the absence of 

the discriminatory or retaliatory motive. Id. If we find that the agency has made 

that showing, its violation of the ADEA will not require reversal of the action. 

Id.

¶26 Here, the appellant attempted to prove his allegation of age discrimination 

with the first and second type of circumstantial evidence described above, i.e., 
13

ambiguous statements and comparator evidence. The appellant asserts that his 

supervisor made one or two comments to the appellant suggesting that he retire. 

IAF, Tab 1 at 6. He claims that, since January 1, 2009, 11 of 12 proposed 

removals were issued to employees who were over 50 years of age, and all of 

those over 50 were removed. He also claims that this evidence shows that the 

removals for conduct and performance of employees over the age of 50 are

disproportionate. IAF, Tab 16.

¶27 We agree with the administrative judge that the appellant’s evidence does 

not constitute preponderant evidence that his removal constituted discrimination 

on the basis of his age. As she found, the appellant’s claim that his supervisor 

suggested that the appellant retire, even if true, does not show that the statement 

was due to the appellant’s age, especially given the supervisor’s denial that he 

made such a statement, the evidence that other older employees who continue 

working within the unit are past the eligibility age to retire, and the detailed 

performance-related reasons for the appellant’s removal. ID at 20. As she also 

found, the examples of removals submitted by the appellant each cite specific 

reasons for removal that are independent of age, and the appellant’s argument 

does not include other relevant information to support his assertion, such as the 

number of employees over 50 at the agency as a whole who were not presented 

with notices of removal. ID at 20-21. Further, a newspaper article submitted by 

the appellant stating that the agency is seeking younger employees suggests that 

its workforce is disproportionately older. ID at 19. Therefore, the Board will not 

disturb an administrative judge’s findings when, as here, she considered the 

evidence as a whole and drew appropriate inferences. See Crosby v. U.S. Postal 

Service, 74 M.S.P.R. 98, 105–06 (1997); Broughton v. Department of Health & 

Human Services, 33 M.S.P.R. 357, 359 (1987). Accordingly, we affirm the 

administrative judge’s initial decision.
14

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See title 5 

of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your 

request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a 

signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your discrimination 

claims, you may file a civil action against the agency on both your discrimination 

claims and your other claims in an appropriate U.S. district court. See 5 U.S.C. 

§ 7703(b)(2). You must file your civil action with the district court no later than 

30 calendar days after your receipt of this order. If you have a representative in 

this case, and your representative receives this order before you do, then you 
15

must file with the district court no later than 30 calendar days after receipt by 

your representative. If you choose to file, be very careful to file on time. If the 

action involves a claim of discrimination based on race, color, religion, sex, 

national origin, or a disabling condition, you may be entitled to representation by 

a court-appointed lawyer and to waiver of any requirement of prepayment of fees, 

costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board